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A view from the bench

[ 29 ] January 10, 2013 |

A federal judge has asked me to post the following comment on the state of legal academia and the legal profession:

ON THE FAILURES OF LEGAL EDUCATION

It is no secret that many lawyers are dissatisfied with their profession. Of the million or so lawyers in the United States (more per capita by far than any other country) over half are said to be unhappy and giving serious consideration to leaving the practice of law. A burgeoning industry of coaching, counseling, and career change assistance has developed to guide such people to new opportunities. Facing declining applicant pools, law schools advertise that a legal education is worth its steep price irrespective of whether the graduate intends to practice law or engage in some other pursuit. But a number of recent law graduates have sued their schools, alleging that the law schools misrepresent post-graduate employment opportunities, that few jobs as lawyers are available, and those jobs that are available pay substantially less than law schools have represented. Indeed many law graduates are saddled with large student loan debts that place them in indentured servitude for years. The average debt for recent graduates exceeds $100,000.00.

Law professors are among the highest paid academics, and enjoy the newest buildings on ever-enlarging campuses. Law schools employ many part-time adjuncts who teach large enrollment classes for meager fees, generating even more profits for the law school budget, and less teaching time for the tenured faculty. Overhead costs for laboratories, equipment and floor space are nearly non-existent. Yet the law schools are engaged in fierce competition for increased enrollment and that most elusive of goals: academic prestige. The annual ranking of law schools by U.S. News and World Report becomes the coveted benchmark. Because law schools are profit centers for the universities, there is little external oversight of their operations. The litany of ensuing dubious practices includes puffing up of enrollees’ Law School Aptitude test scores and undergraduate GPAs, misleading and rigged graduate placement reports, and some not-so-subtle innovations such as paying stipends to recent graduates to work for free in courts, prosecutors’ offices and private firms during the sampling period.

A few brave and talented legal academics such as Paul Campos of the University of Colorado and Brian Tamanaha of Washington University St. Louis have risked becoming pariahs among their colleagues by exposing the failures and shortcomings of the law school institution. Accused of failing to prepare graduates to enter the profession, the law schools attempt to address the issues through economic arguments. Their students, they claim, are “practice ready,” meaning law firms can shift their most basic investment in young associates from the corporate clients who are no longer willing to foot the bill back to the very institutions responsible for creating the glutted market. In turn, graduates are forced to work long hours with less supervision on stultifying tasks at pay levels making service of their acquired debt nearly impossible, all for the promise of a partnership that has become a vanishing hope.

Recent accounts, such as Running From The Law by Deborah Arron assert that more than half of young lawyers leave the law knowing they have been lied to. They have sought the law as a means of earning a comfortable and secure living. They have been taught that academic standing in class increases one’s job prospects. The law schools have abandoned teaching that the most fundamental aspect of the profession is one of service. When the primary purpose of service is ignored, the practice of law is condemned to drudgery, to the pure hell of endless hours of performing rote work for a fee.

Plato knew that people learn by example, and from demonstrations illustrating the lessons to be learned. It is all well and good for law schools to offer courses in the substantive subjects of the law, but more fundamental to acquiring knowledge and forming character is the conduct of teachers and the institution they attend. (Indeed the word “attend” literally means “to pay attention to.”) Just as bad parenting produces bad children who grow up to become bad parents, what the student sees and feels counts more than routines of “practice ready” performance.

No wonder law students are learning to be materialistic and cynical, to consider the profession of law as gamesmanship, and merely a way to earn more money than the next person. When law schools misrepresent LSAT scores and job opportunities, offer third year courses with little or no pedagogic purpose or value, engage in grade inflation and charge ever-increasing tuition and fees, students learn that fraud, dissimulation and ethical corner-cutting are acceptable standards of behavior. When they learn of the gross separation in salaries and status and the relatively soft work schedules of the doctrinal faculty compared with clinical instructors with whom they have much closer personal contact, when they learn that adjunct faculty are paid pittances and used and abused as profit centers, when they see that school administrators outnumber scholars and that tenure is becoming obsolete, how can they not be expected to accept that this status quo is the criterion for the professional life?

Law schools claim that pragmatism is the only way to address fierce competition. To what end? Making graduates “practice ready” is an illusion, which is not only impossible to achieve, but in fact detrimental to the life and career of the student. The goal should be to produce young lawyers who, as Thomas Wolfe described writers attending workshops, are “ready to commence to begin to start” to learn, through a lifetime of practice, the art and craft of guiding others to safe passage through the extremities of experience, to achieve socially appropriate goals, and to insist on leading ethical lives. It is not to produce yet another cadre of cynical shysters grasping for more fees or a legion of those who flee the profession in despair.

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Comments (29)

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  1. Eli Rabett says:

    “No wonder law students are learning to be materialistic and cynical”

    Eli thought that was the required minor for premed and prelaw students in college?

    • L2P says:

      Nice.

      Yes, all those kids thinking about work as a PD are so damn materialistic. And those greedy bastards who want to work at Bet Tzedek, or the ACLU, or Public Counsel. And those cash-hungry whores who are looking at government jobs? It’s like they’re channeling Ayn Rand.

      • Eli Rabett says:

        You might consider a course in statistical analysis

        • L2P says:

          You might consider not being a jackass.

        • L2P says:

          But if you want to talk about “statistical analysis,” then let’s do.

          Only 75% of attorneys are in private practice. Of those in private practice, most of them aren’t working for large law firms. Most of them grind it out making decent, but not great, livings – less than $100,000 in Los Angeles

          I don’t see you arguing that all those greedy bastards joining the Fire Department are mainlining the Book of Midas, but that’s less than firemen make in Los Angeles. That’s less than a police LT. That’s less than a lot of nurses.

          So knock yourself out, Statman. Show how Lawyers are especially greedy compared to anyone else. Show how lawyers get splattered with greed paint while some other career is a life of service and charity.

          Go on. Let’s see it. Splain.

          • Eli Rabett says:

            Where they end up ain’t where they think they are going to start. Read Campos.

          • Eli Rabett says:

            Knock yourselves out

            American University Law Review
            June, 1997
            LAWYER, KNOW THYSELF: A REVIEW OF EMPIRICAL RESEARCH ON ATTORNEY ATTRIBUTES BEARING ON PROFESSIONALISM*
            SUSAN DAICOFF**http://www.wcl.american.edu/journal/lawrev/46/daictxt.html

            Law Schools and Law Students
            Robert Stevens
            Virginia Law Review
            Vol. 59, No. 4 (Apr., 1973), pp. 551-707
            Published by: Virginia Law Review
            http://www.jstor.org/stable/1072107

            11 Geo. J. Legal Ethics 547 (1997-1998)
            Asking Leopards to Change Their Spots: Should Lawyers Change – A Critique of Solutions to Problems with Professionalism by Reference to Empirically-Derived Attorney Personality Attributes; Diacoff, Susan

            • redwoods says:

              Oh yes, those are recent. Christ, I have kids in middle school of younger vintage.

              • Eli Rabett says:

                That’s why the made Web of Knowledge to search forward. You can also do it in Google Scholar. For example, search on Susan Daicoff, then find an appropriate paper/book of hers and then look at the papers that reference that paper. Hint: Causality indicates that those will be more recent.

  2. The saddest part is that law students are generally intelligent and hard working people. They are frequently unable to envision a way to enter the workforce apart from law, which they imagine has a sort of built-in on ramp. That was once sort of true, but it sure as hell isn’t in the 21st Century. Too bad. Most of the students I see would be an asset in any workplace. Thanks to their expensive JDs they will be lucky to be miserable.

    • NewishLawyer says:

      I would say this is because a lot of lawyers/law students, at least the ones I know are not cut out for business.

      I went to law school in my late-20s and have lots of friends who went to law school later in life. We tend to be more practical refugees from art and academia. I was deciding between a PhD and JD and decided on the JD because of wanting to choose where I lived and not getting stuck at the University of Southeastern North Dakota.

      However being a more practical refugee from art or academics does not necessarily make one cut out for business, marketing, advertising, accounting, etc.

      I am lucky and working at a good firm and on interesting projects even if I am still only a contract attorney. I am building experience and a direct hire by the firm. The work is way more intellectually satisfying that accounts receivable or a coming up with a marketing promotion for toothpaste.

  3. Justin Gundlach says:

    Professor Campos: Particularly now that Elizabeth Warren sits on the Senate Banking Committee, might it be time to start a campaign to reverse the change made to the bankruptcy code in 2005 that prevents entinguishing student debt through bankruptcy?

  4. DanMulligan says:

    Practice ready? Please. I’ve been at it 30 years. There is no such animal, nor any hope of creating one. Like most of life, its a bit more than just rote learning.

  5. cpinva says:

    ouch! that’s pretty devastating indictment, of law schools specifically, and the profession generally.

  6. L2P says:

    At the big law firms things are very different now. They used to be able to leverage partners by billing out younger associates, but clients see that as a waste of money. They feel like a senior associate or partner actually gives them value; even though the rate is higher, they don’t put in as many hours. So they don’t want junior associates on matters very much.

    It’s killing new hires and drastically changing the economics of big firms. If a partner can’t make money by billing out 10 matters to a bunch of junior associates but has to do the work herself, there’s (a) much less work for the junior associates, (b) no training for them, and (c) firms are much more top heavy. It’s going to be very tough on law students for a long time.

    • Barry says:

      “It’s killing new hires and drastically changing the economics of big firms. If a partner can’t make money by billing out 10 matters to a bunch of junior associates but has to do the work herself, there’s (a) much less work for the junior associates, (b) no training for them, and (c) firms are much more top heavy. It’s going to be very tough on law students for a long time.”

      It’s been mentioned both here and ItLSS that large firms are not setting up ‘Staff attorney’ shops in lower-cost locations, and hiring experienced lawyers in non-partner track positions.

      • L2P says:

        Did you mean to say “are” setting up shops? Yes, they are. But that’s for document production and other time-intensive work.

        What USED to happen is junior associates would do law and motion work or help on deals or counseling. So you’d have a matter staffed by a partner and a few juniors and the billing would be 1/4 (say) partner time. Now, it’s not uncommon for the billing on that sort of thing to be 3/4 partner time, or higher.

        This is a whole ‘nother Oprah from the discovery mills in Jacksonville.

        • TribalistMeathead says:

          “But that’s for document production and other time-intensive work.”

          Well, for now, anyway. And that’s because you don’t even need a JD to perform first-level doc review, you just need to be supervised by one. But guess what? There’s a whole lot of work that used to be performed by first-years that you really don’t need a JD for, either.

  7. Snarki, child of Loki says:

    Paul, when do you start the betting pool for when marginal law schools close down?

  8. MikeJake says:

    You know, if society really cared, the government could pay lots of young lawyers to do things like work for the public defender, various legal aid initiatives for the indigent (like helping people defend against foreclosures), educate youth on their legal rights and responsibilities, alternative dispute resolution, etc. Essentially, help this country live up to some of its ideals in terms of justice, and blunt some of the malign influence of our rapacious elite and their cronies in government. Paying people to help “perfect” our society and make it a gentler, fairer place to live would be a fine investment of tax dollars.

    Unfortunately, society doesn’t seem to share my values in this. I like to point to the public defenders in Cook County, IL, who are in a union. Try and imagine what funding and workload shenanigans the county would try to get away with if they weren’t unionized, and try and imagine most “respectable” people around Chicago actually giving a damn.

    • L.M. says:

      Right. Our country is home to a large number of lawyers who need work. It’s also home to a large number of non-rich people who need lawyers. This is a tremendous market failure, and the fact that our governments are doing basically nothing to address it is a tremendous failure on their parts.

  9. RedSquareBear says:

    I think a lot of this begins with our constant conflation of “defendant” and “criminal”. This is unfortunate. Once we construct a war on crime we create the criminally accused as an enemy to be battled.

    They say a conservative is a liberal who’s been mugged. Surely, then, a liberal is a conservative who’s been arrested.

    • RedSquareBear says:

      That was supposed to be a reply to MikeJake. It was also supposed to be not crap. Double d’oh.

      (You could say I double d’oh’ed on quality posting!)

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